The Newberry herald and news. (Newberry, S.C.) 1884-1903, 1887-09-22

by necessary Implication enlarges the
right to writ of habeas corpus.
Section l6, of Article /, reads as
follows: "All persons shall, before
conviction, be bailable by sufficient
sureties. except for capital offences,
when the proof is evident or the
presumption great, and excessive
bail shall not in any case be re
quired, nor coporal punishment in
tiicted"
AS l interpret this article, by nee
essary implication, it grants to the
citizen the right to the writ of habeas
corpus, in cases OF capital felony as
well as in cases of lesser crimes. I
do not see how a Judge can lawfully
refuse the writ in any case.
The Constitution overrides the
statute, and, by necessary implica.
ton, renders the granting of the
writ in all cases no longer discretion.
ary with the Judge. A party charged
with murder can now demand the
writ as matter of right; and having
thus been brought before the Judge
he is entitled to bail, unless the
proof of guilt be evident, or the pre-.
sumption great. If such be the
proof or presumption, he is not bail
able as matter Of right, but it then
rests as it always has, in the discre'
tion of the Judge. To one evidently
guilty, q Judge, in the exercise of a
sound discretion, should not grant
bail. Where the guilt ofthe accused
is clear the only safe and prudent
course is to refuse bail. Extreme
cases may and do occur where, a.
though clearly guilty, there is yet no
probability of fight, and bail may be
safely granted, The risk, however,
should not be taken.
Reviewing the course of our Judicial
decisions, and the established practice
fthe eminent Judges of the State who
have passed away, the fact appears
that what Is now g. constitutional
enactment is in exact accord with
their uniform administration Of the
law. In cases Of capital felony they
never denied the writ of hsoeas cor
pus, and yet could have refused
it.
Now it seems it cannot be refused.
They never refused bail to one
charged with capital felony against
whom the proof of guilt was slight,
Now it cannot be refused. They
often refused bail to those against
whom the proof was evident or the
presumption great:
Our Constitution suggests that it
should lie so refused, although it
does not deprive the Judges of this
common law power to grant bail in
any case AS I remarked before, the
sole object of imprisonment before
conviction is not the punishment OF
the accused, but to secure his forth
coming to stand his trial and to
abide the punishment to he inflicted
in case he should be convicted.
Where the punishmentis is death, the
guilty man is prone to fly, and will not
hesitate at the thought of pecpniary
forfeiture, and hence the danger in
/ admitting him to bail.
Experience, however has taught
the people of England and of this
country that no definite restriction
upon the matter of bail before trial
can safely be laid down by the Leg.
islature. a discretion must be
lodged in the Judges, and they must
| be confded in not to abuse it. Ac.
cording to the circumstances of
each case bail is to be granted or de-
MED. But just here arises the sore
trial Of the Judge, and the clear dem.
onstration ef the vital Importance OF
the coroper's inquest: If that work
be we'll done, the Judge is greatly
aided in reaching just conclusion,
He must be controlled by the testi'
mony submitted. This consists, on
behalf of the State, of the evidence
given at the inquest. Rarely any
other is ever submitted. How de.
fective and unsatisfactory this ordi'
narily is. I spoke of it in my first ar:
ticle, and will not again DWELL upon
it here. it is enough 70 know that il
usually consists Of the looses care
Jess and imperfect examination Of
only 2 few of the witnesses who
might be procured, and testimony OF
those who are examined is often very
imperfectly recorded.
The case is far different in be-
half Of the accused. Every item
of testimony available he and his
counsel procure. This is carefully
gotten up in the shape of afidavits